Partner Caleena S. Braig shared advice for companies considering workplace vaccine, testing, or mask mandates after a Supreme Court decision with Corporate Compliance Insights reporter Henry Kronk.
The interview was featured in a Corporate Compliance Insights article, Supreme Court Ruling Likely Spells the End for Vaccine-or-Test Federal Mandates at Large Businesses, But Numerous Caveats Apply, was published on January 14. An excerpt from the article is below.
The Supreme Court conservative majority held ranks to temporarily stay an OSHA standard that would have made large employers require their employees get vaccinated or wear a mask and test regularly.
While the policy has been up in the air since it was introduced in November, experts believe this will be the de facto final say on the matter. But that verdict is not certain. Other circuits continue to consider the mandate. OSHA may come up with new standards. State governments, meanwhile, have leeway to put their own measures in place.
CCI reached three experts in employment law to get their comment on the stay and what it means for employers.
Caleena Braig, partner at law firm Moye White:
Notably, in granting the stay, the U.S. Supreme Court held in a 6-3 decision that the challenge to the ETS is likely to succeed on the merits because OSHA lacked the authority to issue the ETS mandate. The court explained that OSHA is allowed to “set workplace safety standards, not broad public health measures.” Because the risk of contracting COVID-19 is not only in the workplace but also in many other public settings, COVID-19 “is not an occupational hazard.” Thus, the court held that allowing OSHA to broadly regulate “the hazards of daily living” would expand OSHA’s authority beyond what Congress allows.
While likely indicative of what may come, the Supreme Court’s decision is not the final say. Instead, the court directed the Sixth Circuit to consider the substantive validity of the ETS. But, with the stay in place, employers have additional time to prepare for compliance should courts uphold the ETS, which appears unlikely. Because of the court’s decision, OSHA may issue a new or limited ETS on the subject matter.
Further, the court’s decision does not affect state and local COVID-19 vaccination and testing requirements. Employers are not in the clear yet and should continue to monitor updates until there is a final resolution on this matter.
Read the full article in Corporate Compliance Insights.
About Moye White LLP
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